Some of our fellow U.S. states are in a drought. One of them is the second largest state in terms of population, Texas. The New York Times reported that Texas has been in a drought for two years. Various types of policy mechanisms can push the state to act and conserve water. Though I will not go into the various ways the State has already conserved, I will highlight an update from March 11, 2013 in which policymakers used a federal law, the Endangered Species Act, as a backdoor to regulate the state’s consumption of water.
In the case, The Aransas Project v. Shaw et al., a public interest and environmental group called the Aransas project sued the Texas Commission on Environmental Quality (TCEQ), Texas’ state EPA. They argued if the TCEQ allows for continued use of freshwater from the Guadalupe River, the freshwater falls low enough, causing harm to the ecosystem and endangered species like the whooping crane. Violating the Endangered Species Act (ESA) gets you into murky waters between states versus the federal government because the ESA is a federal law. The Southern District Court of Texas sided with the plaintiffs, a decision that arrested TCEQ’s ability to grant any new water permits to projects that need water from the San Antonio River or Guadalupe River Basins. Plus, in 30 days, the TCEQ must require existing users to get “Incidental Take Permits” and issue Habitat Conservation Plans. Long and short, water is limited in Texas, and large users of water-particularly industry-need permits called water rights that give them permission to use the water. With The Aransas Project v. Shaw et al. decision, it will be more work for users to get water from the Guadalupe River and San Antonio River Basins.
This decision also calls into question TCEQ’s authority to act on water. In Texas, finding out who owns the water is a complicated matter, but it is important in figuring out who is obligated to protect the water. In Texas, it seems like the State and property owners point fingers at each other. If water is in the ground underneath your house, you own the property and, thus, you own the water as well. The State cannot restrict your use. Endangered Species Law and Policy mentions, “The court rejected this argument, holding that TCEQ has the authority, power, and responsibility to manage water diversions, and that the ESA requires that such management take into account the health and survival of whooping cranes.” It means TCEQ should have limited freshwater use and therefore protected cranes.
When it comes down to the meat of the issue, it is my belief that the lack of water is the issue, not the endangerment of whooping cranes. The cranes just helped draw water shortage to the limelight.